Tuesday, July 31, 2012
Legal Blogging, Ethics and First Amendment Rights
Ultrabook Benefits for Attorneys
Monday, July 30, 2012
Inside the America Invents Act
Source: http://legaltalknetwork.com/podcasts/ip-counsel/2011/11/inside-the-america-invents-act/
Future OS: Windows 8, Apple Mountain Lion and Beyond
Sunday, July 29, 2012
LCD Price-Fixing Ends With Historic Settlement
Source: http://www.npr.org/2012/07/27/157500605/lcd-price-fixing-ends-with-historic-settlement?ft=1&f=1070
Absolute Novelty Worldwide - Not Always So Absolute
Saturday, July 28, 2012
Student Loan Management for Lawyers
Source: http://legaltalknetwork.com/podcasts/legal-toolkit/2012/01/student-loan-management-for-lawyers/
Don't Ignore Governmental Mechanisms for Protecting Intellectual Property Rights
Friday, July 27, 2012
LawBiz® Legal Pad: Bringing in the $'s - Collections
Are you billing appropriately? This week, Ed will offer handy tips that will help you collect what you billed to make sure that you're getting paid.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/XAGi1x9A3ig/
Update on Timeline for SEC Rulemaking to Implement the JOBS Act and Dodd-Frank Act
In recent weeks, the SEC has given notice of matters that SEC Commissioners will consider at an open meeting on August 22, 2012, including:
- general solicitation rulemaking required by Title II of the JOBS Act
- disclosure and reporting rules for conflict minerals and resource extraction issuers that are required under the Dodd-Frank Wall Street Reform and Consumer Protection Act
SEC Chairman Mary Schapiro also recently testified before a House Oversight and Government Reform Committee about the SEC’s progress in implementing rules and providing studies and reports to Congress required under the Jumpstart Our Business Startups (JOBS) Act.
The JOBS Act (http://www.corporatesecuritieslawblog.com/capital-markets-president-obama-signs-jobs-act-landmark-reform-for-small-and-emerging-growth-companies-now-law.html), among other things, eases some of the regulatory burden for small businesses and startups to generate capital. Certain provisions of the JOBS Act became effectively immediately upon passage on April 5, 2012, while other provisions require additional SEC rulemaking in order to take effect.
In this blogpost, we provide a brief update on the status of implementation of the JOBS Act and the remaining corporate governance and compliance provisions of the Dodd-Frank Act.
Can I engage in general solicitation and advertising in connection with a private offering to accredited investors?
Not yet. Section 201(a) of the JOBS Act required the SEC, within 90 days of enactment of the JOBS Act, to revise the Rule 506 safe harbor from registration to allow general solicitation and general advertising for offers and sales of securities made under Rule 506, provided that all purchasers are accredited investors. The SEC was also required to revise Rule 144A, within 90 days of enactment of the JOBS Act, to provide that securities sold under Rule 144A may be offered to persons other than qualified institutional buyers (QIBs), including by means of general solicitation or advertising, provided that the securities are sold only to persons reasonably believed to be QIBs. The 90-day deadline expired on July 4, 2012, and the SEC has not yet adopted such revisions to Rule 506 or Rule 144A.
Chairman Shapiro noted in her testimony to Congress that the 90-day deadline did "not provide a realistic timeframe for the drafting of the new rule, the preparation of an accompanying economic analysis, the proper review by the Commission, and an opportunity for public input”. The SEC will consider rules to implement Section 201(a) on August 22, 2012. Typically, the SEC adopts proposed rules at the meeting at which they are considered.
What is the status of the crowdfunding provisions of the JOBS Act?
Title III of the JOBS Act provides a new exemption from the registration requirements of Section 5 of the Securities Act of 1933 for crowdfunding offerings. Crowdfunding involves the use of the internet and social media to raise capital, typically from a large number of people and in relatively small amounts per person. In May 2012, the SEC published responses to frequently asked questions related to the crowdfunding exemption which can be found here.
The JOBS Act requires the SEC to adopt crowdfunding rules within 270 days of enactment of the JOBS Act to implement the new crowdfunding exemption. Chairman Shapiro stated in her testimony to Congress that SEC staff in the Divisions of Corporations Finance and Trading and Markets are working closely together, along with the economists in the SEC's Division of Risk, Strategy, and Financial Innovation, to develop recommendations for the SEC. Chairman Shapiro did not indicate whether she expects the SEC to meet the 270-day deadline, which expires December 31, 2012.
What is the status of the JOBS Act IPO on-ramp provisions?
The IPO on-ramp provisions contained in Title I of the JOBS Act became effective immediately without SEC rulemaking. These provisions reduce regulatory burdens and disclosure requirements for qualifying “emerging growth companies” (EGCs). EGCs are companies with less than $1 billion in annual gross revenues and less than $700 million in publicly-traded shares that had their first registered sale of securities on or before December 8, 2011. For example, EGCs are allowed to “test the waters” by communicating with QIBS or institutional accredited investors prior to the sale of securities and they are allowed to submit their IPO registration statement on a confidential, non-public basis until closer to the time of the IPO "roadshow". In addition, EGCs may take advantage of scaled disclosure for both the IPO registration statement and subsequent filings required under the Securities Exchange Act of 1934 for up to 5 years following the IPO.
The SEC has taken the following steps to enhance the implementation of Title I thus far:
- outlined procedures guiding EGCs through the draft registration submission process
- developed a secure e-mail process for confidential nonpublic submissions of IPO registration statements
- issued frequently asked questions regarding Title I
Is relief from the “500-shareholder” rule available yet?
Yes. Title V and Title VI of the JOBS Act amended Section 12(g) of the Securities Exchange Act of 1934 to raise the threshold for registration under the Exchange Act for companies and banks and bank holding companies from 500 securityholders of record to either 2,000 securityholders of record or 500 securityholders of record who are not accredited investors. Title V also excludes persons who received shares pursuant to employee compensatory plans in transactions exempt from registration under the Securities Act from counting against the number of holders of record. Shortly after enactment of the JOBS Act, the SEC posted guidance addressing expected questions related to Title V and Title VI. The JOBS Act requires the SEC to adopt safe harbor provisions that issuers can follow when determining whether holders of their securities received the securities pursuant to an employee compensation plan in transactions exempt from registration under the Securities Act. No deadline is given for these rules. The SEC’s posted guidance indicates that the required rulemaking does not affect the current availability of the JOBS Act amendments to Section 12(g). The SEC has not provided a target date for implementation of these regulations.
The JOBS Act also requires the SEC to report to Congress within 120 days after enactment on whether new enforcement tools are needed for the SEC to enforce the provisions of Rule 12g5-1 that disregard forms of holding securities that are used primarily to circumvent the registration provisions of Section 12(g). In her testimony to Congress, Chairman Shapiro stated that staff from the Division of Corporation Finance is working with staff from the Division of Risk, Strategy and Financial Information to review these provisions. Chairman Shapiro did not indicate whether she expects the SEC to meet the 120-day deadline, which expires August 3, 2012.
What disclosure rulemaking remains to be adopted under the Dodd-Frank Act? What is the timetable for adopting those rules? Is the required JOBS Act rulemaking taking priority of Dodd-Frank rule-making?
The SEC has yet to adopt the following disclosure rules required under the Dodd-Frank Act:
| Dodd-Frank Section | Description | Statutory Deadline | Status |
| 953 | Rules regarding disclosure of pay-for-performance and pay ratios | None | SEC actively working on it. Acknowledges significant challenges given express requirements in statutory language. Prior projected timetable withdrawn. Proposed bill in Congress to repeal Section 953. |
| 954 | Rules regarding recovery of executive compensation (clawbacks) | None | SEC actively working on it. Prior projected timetable withdrawn. |
| 955 | Rules regarding disclosure of hedging by employees and directors | None | |
| 1502 | Rules regarding disclosure related to "conflict minerals" | April 17, 2011 | SEC proposed rules on December 15, 2010. Conducted roundtable on October 18, 2011. Commission to consider final rules on August 22, 2012. |
| 1504 | Rules regarding disclosure by resource extraction issuers | April 17, 2011 | SEC proposed rules on December 15, 2010. Commission to consider final rules on August 22, 2012. |
At a talk given to the Society of Corporate Secretaries and Governance Professionals on July 14, 2012, Meredith Cross, Director of the SEC Division of Corporation Finance, stated that the SEC is working simultaneously on all of the required JOBS Act and Dodd-Frank Act required rules. She stated that the SEC did give priority to the Dodd-Frank provisions with statutory deadlines, but the SEC has not de-prioritized Dodd-Frank rulemaking without statutory deadlines in favor of the JOBS Act provisions with statutory deadlines. She did however indicate that capacity constraints must be expected to affect the speed at which any new rule-making can be completed.
What if you have questions?
For any questions or more information on these or any related matters, please contact any attorney in the firm’s corporate practice group. A list of such attorneys can be found by clicking Lawyers on this page.
John Tishler (858-720-8943, jtishler@sheppardmullin.com), Louis Lehot (650-815-2640, llehot@sheppardmullin.com), Edwin Astudillo (858-720-7468, eastudillo@sheppardmullin.com), Jason Schendel (650-815-2621, jschendel@sheppardmullin.com), and summer associate Irene Lu participated in drafting this posting.
Disclaimer
This update has been prepared by Sheppard, Mullin, Richter & Hampton LLP for informational purposes only and does not constitute advertising, a solicitation, or legal advice, is not promised or guaranteed to be correct or complete and may or may not reflect the most current legal developments. Sheppard, Mullin, Richter & Hampton LLP expressly disclaims all liability in respect to actions taken or not taken based on the contents of this update.
Thursday, July 26, 2012
Federal Circuit takes a close look at patent assignment language
How Solos Can Build an International Law Practice
Wednesday, July 25, 2012
Retarded in Georgia
Hill, who is nobody's poster boy for innocence, received the death penalty for killing a fellow inmate while imprisoned for killing his girlfriend. He's also clinically retarded, meaning that he has an IQ of 70, and nobody disputes it. But in Georgia, that's not good enough to prove retardation.
As described by Andrew Cohen in his Atlantic article describing the executions scheduled for the week ahead (no reason to read the part about Yokamon Hearn, as he was executed last Wednesday), Hill just wasn't retarded enough:
An extensive evidentiary hearing was held. Even the state agreed that Hill met the "IQ criterion for the diagnosis of mental retardation." Where the parties diverged, however, was on the issue of whether Hill's cognitive failings were accompanied by what law and science call "impairments in adaptive functioning."
But the court noted instead that Hill had exhibited a "consistent work ethic" and had "managed well enough, in a 'functionally academic manner' to handle financial transactions ... while simultaneously sending monies to his family and contemporaneously maintaining his personal needs." Hill even passed a military entrance exam. The court ruled that while Hill was demonstrably retarded, he had nonetheless not proven beyond a reasonable doubt that he was retarded enough to avoid execution.
The distinction comes from a peculiarity in Georgia's burden of proof, where the defendant is required to not only prove he's retarded, but to do so beyond a reasonable doubt. While Warren Hill was unquestionably retarded, it was merely by a preponderance of the evidence. Close, but not good enough.
Georgia is the only state in the nation which requires the "reasonable doubt" standard in these cases -- and the state supreme court proudly defended its standard. The majority wrote:
In view of the lack of national consensus as to which mentally impaired persons are constitutionally entitled to an exemption from death sentences, we conclude that the Georgia General Assembly, the first legislative body to create such an exemption, was originally and now remains within constitutional bounds in establishing a procedure for considering alleged mental retardation that limits the exemption to those whose mental deficiencies are significant enough to be provable beyond a reasonable doubt.
What this means isn't exactly clear. How exactly does a person prove that he's retarded beyond a reasonable doubt when the criterion is so wiggly as to suggest that anything less than constant drooling opens the possibility that maybe he's not that retarded? No matter, as the Georgia Supreme Court concluded. It's Hill's problem to solve, even though nobody really doubts that he's retarded. From the 4-3 dissent:
Despite the federal ban on executing the mentally retarded, Georgia's statute, and the majority decision upholding it, do not prohibit the state from executing mentally retarded people. To the contrary, the State may still execute people who are in all probability mentally retarded. The State may execute people who are more than likely mentally retarded. The State may even execute people who are almost certainly mentally retarded. Only if a mentally retarded person succeeds in proving their retardation beyond a reasonable doubt will his or her execution be halted.
One might wonder how exactly the theory behind the Rule of Lenity, that statutory ambiguity is resolved in favor of the defendant, since the Georgia statute shifting the burden to the defendant to prove retardation beyond a reasonable doubt suffers from the same infirmity as the burden at trial. It's a really cool sounding standard, but so vague and ephemeral as to allow whatever outcome a person wants in even a moderately close case. Essentially, the ability to walk without tripping seems sufficient to find a prisoner death-ready.
Granted, Hill's crimes (like Hearn's before him) aren't likely to make proponents of the death penalty feel particularly badly about society's loss. But like Hearn, the parameters of the rules about who gets executed are tested by those who have done terrible things, rather than only the wrongly convicted or murderers for whom we have an affinity.
The Supreme Court rightly held that we do not execute retarded people in America. And, as the dissent wrote, Hill is "almost certainly mentally retarded." Even that doesn't seem to adequately sum it up, as there is no question that he is mentally retarded, with the only question being whether he has proven beyond a reasonable doubt that mentally retarded enough.
That it's necessary to parse the details to this extent, where the slightest of distinctions are argued more on a rhetorical than factual basis, in order to explain away the obvious and put the mark of death on a defendant's head is where capital punishment goes off the rails, even for those who aren't at all concerned that it's part of a seriously inadequate system.
The divided Georgia Supreme Court concluded that the proof failed to meet a burden that itself goes beyond the burden found anywhere else in the United States. The court's decision prevailed by one vote, based on a standard that would allow for whatever decision met the judges' personal sensibilities. Even the prevailing judges saw this case as sitting on a razor's edge. No person should be executed when it cannot be said with absolute certainty and clarity that they do not fully satisfy the statutory criteria, even if you believe that people should be executed at all.
Most ironic is that Warren Hill passed the military entrance exam. Perhaps his conduct would have earned him a medal, if for his work ethic if not his use of weapons. That's how thin the line can be. And yet he's not sufficiently retarded to be spared execution in Georgia. Maybe no one is sufficiently retarded in Georgia.
© 2012 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Source: http://blog.simplejustice.us/2012/07/21/retarded-in-georgia.aspx?ref=rss
The Surefire Way to End Online Piracy: End Copyright
Tuesday, July 24, 2012
Inside the Gerry Spence Trial Lawyers College
Monday, July 23, 2012
Paralegals & Process Servers
Source: http://legaltalknetwork.com/podcasts/paralegal-voice/2011/12/paralegals-process-servers/
Sunday, July 22, 2012
So You Think The Pizza Delivery Guy Will Be Easy Pickings?
One would think, as these two men did, that robbing a pizza delivery guy, while not that lucrative, would be a low-risk crime - even more so if the would-be robbers had shotguns. One would be wrong, at least in this case from Columbus, Ohio. Per 10tv.com:
According to police, the Padova’s Pizza delivery driver was delivering a pizza when two men armed with shotguns approached him, in the 5000 block of Hatfield Dr., at about 11:45 p.m. Monday.
The driver, who was licensed to carry a gun, told the men to stay away from him. When the men continued to approach the driver, he shot at them. One of the alleged would-be robbers was found a short distance away, on Rutledge Drive, with wounds to his face, chest and thigh.Shazam!
“He immediately pulled out his gun, fired five to six rounds, definitely hit one that we know of,” said Madison Township police Det. James Galvin.
The man who was struck by bullets, identified as 20-year-old Cortez Bradley, was transported to Grant Medical Center. Investigators said that the second suspected robber, Bradley’s 16-year-old cousin, fled the scene and sent a text messages to family members, indicating that he was shot twice.Though it worked out okay this time, you'd be correct if you assumed that this is not the owner's policy.
Padova’s Pizza owner Robert Steven said that he has been robbed a number of times and said that he gives all his employees the same advice.
“My drivers are told to give them what they want and get out of there,” Steven said.Good advice. Fortunately for the delivery man, he didn't pay a price for ignoring it. Click here for the source.
Source: http://rss.justia.com/~r/LegalJuiceCom/~3/wLr95rwxaiQ/post_457.html
A view from the trenches of death penalty appeals
Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202563823788&rss=nlj
Saturday, July 21, 2012
Federal appeals court upholds EPA sulfur dioxide regulations
Friday, July 20, 2012
The Olympics' Missing Medals
But fencing was an original, and one of only four events to have been featured since the first modern Olympics in Athens in 1896. And yet, in the 2012 Olympics, an inexplicable omission remains.
The fencing lord giveth and the fencing lord taketh away.
Last month, at the fencing world championships in Kiev, Ukraine, the U.S. men’s épée team won the gold medal, its first. Despite that accomplishment, the foursome won’t be able to take that momentum — and the group dynamic — to the Olympics this summer.
As a rule, the International Olympic Committee takes one team from men’s and women’s fencing out of the mix every four years, as a means of limiting the medals the sport can receive. And for the 2012 Games, men’s épée drew the short sword, as it were.
The fencing lord? Hardly. Try the International Olympic Committee. There are three weapons in fencing, foil, saber and épée. and each has significant differences. Yet in each quadrennial cycle, only two of the three weapons are included. Technically, this means there are ten medals for twelve events, covering both individual and team events for both genders in three weapons.
To accommodate this, a different weapon "draws the short straw" for each gender in each quadrennial cycle, so that one weapon is left out every three Olympics, but no weapon is omitted two Olympics in a row.
This peculiar situation arose initially because of gender parity, as men's fencing included all three weapons but women's fencing included only foil. When women's fencing was expanded to include all three weapons, it "ate" two of the medals that had been previously available to fencing.
This wouldn't seem to be all that much of a big deal. By expanding the weapons for women's fencing, the IOC need only add two additional medals and cover all three weapons for two genders. But inexplicably, this didn't happen. Instead, they maintained the same number of fencing medals as before the expansion, forcing two events out of the Olympics per cycle.
Did the medals cost too much? Not likely, given that medals are added for new sports with some regularity. If they can afford to buy medals for new sports, not to mention the plethora of variations of sports such as swimming and track, it doesn't seem that the price of gold is the problem.
For many new sports, aside from questions of whether they are sports or performances, issues arise from the need to build venues and infrastructure for their inclusion. This obviously isn't the problem, as fencing venues are already part of the Olympics, and same strips (or pistes) as used for each weapon.
So why, in an original Olympic sport that has grown to six events in recognition of gender parity has the International Olympic Committee decided not to offer medals to include all twelve events?
No one has, to my knowledge, provided a satisfactory, rational answer.
© 2012 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Source: http://blog.simplejustice.us/2012/07/15/the-olympics-missing-medals.aspx?ref=rss
Thursday, July 19, 2012
IP Intensive Industries: Part One
Source: http://legaltalknetwork.com/podcasts/suffolk-law/2012/05/ip-intensive-industries-part-one/
Second Circuit Effectively Reverses Rejection of SEC's Settlement with Citigroup
In Securities & Exchange Commission v. Citigroup Global Markets, Inc., 2012 WL 851807 (2d Cir. Mar. 15, 2012), the United States Court of Appeals for the Second Circuit essentially approved the terms of a settlement between the Securities and Exchange Commission (the “SEC”) and Citigroup Global Markets, Inc. (“Citigroup”) that had been notoriously rejected by the United States District Court for the Southern District of New York (Rakoff, J.) as “neither reasonable, nor fair, nor adequate, nor in the public interest.” Among other things, the district court had found that a crucial factor missing from the parties’ consent judgment was the lack of admission by Citigroup of any liability. This case stands out because, despite that Citigroup was one of the chief actors behind the financial crisis that began in 2008, its primary regulator is under no legal obligation to insist upon an admission of fault or wrongdoing by Citigroup as part of a settlement of all government claims against the bank.
After an extensive investigation into Citigroup’s marketing of collateralized debt obligations (“CDOs”), the SEC filed a complaint charging Citigroup with negligent misrepresentation under 15 U.S.C. §§ 77q(a)(2) and (3). Simultaneously, the SEC and Citigroup presented a proposed consent judgment, pursuant to which Citigroup agreed to (1) pay $285 million into a fund for investors in a pool of CDOs marketed by Citigroup, (2) entry of an order enjoining it from violating the Securities Act of 1933 and (3) establish procedures to prevent future violations and make periodic compliance demonstrations to the SEC.
The district court rejected the settlement for three reasons. First, it reproved the SEC’s “long-standing” policy of entering into consent judgments without requiring the defendant to admit or deny the underlying allegations, because a settlement “without any admissions [of liability] serves various narrow interests of the parties, but not the public interest.” Second, it held that the settlement was unfair because it unreasonably “impose[d] substantial relief [on Citigroup] on the basis of mere allegations.” Third, it held that the settlement disserved public interest because “without admission of liability, a consent judgment involving only modest penalties gives no indication of where the real truth lies.”
The SEC appealed and moved for a stay of the proceedings in the district court pending its appeal. Citigroup joined with the SEC in all of its arguments.
The Second Circuit considered and rejected each of the district court’s reasons for refusing to approve the consent judgment. The district court found that the settlement offended public interest because Citigroup’s penalty was merely “pocket change,” and the SEC got nothing but a “quick headline.” The Second Circuit held that this determination was flawed because it assumed Citigroup’s liability and gave no deference to the SEC’s wholly discretionary policy choice of whether to settle with Citigroup or pursue it through litigation. The Court indicated it had no reason to doubt that the SEC had taken the public interest in to account because the settlement called for payment by Citigroup of $285 million, “which would be available for compensation of investors who lost money.”
The Court rejected the district court’s characterization of the settlement as “unfair” to Citigroup, noting that contradicted the district court’s concurrent assessment of the settlement amount as “pocket change” and a “mild and modest cost of doing business” for Citigroup. Furthermore, the Court noted that a district court’s legitimate concern does not include protection of “a private, sophisticated, counseled litigant from a settlement to which it freely consents.”
Finally, the Court rejected the district court’s determination that it had no basis to assess the underlying facts absent an admission of liability by Citigroup, referring to the “substantial evidentiary record,” and the SEC’s provision of information regarding how the evidence supported the proposed consent judgment.
The Court held that the movants demonstrated a strong likelihood of success in overturning the district court’s ruling. Considering the remaining prongs of the test, the Court observed that the parties would suffer irreparable harm without a stay, reasoning that the district court’s requirement of an admission from Citigroup essentially precluded any possibility of settlement, leaving the parties no option but to incur substantial costs of litigating their dispute. Lastly, the Court explained that the SEC’s assertion that “its settlement is in the public interest and that its access to a stay so as to protect the settlement is also in the public interest” should not be questioned or rejected by a court “without substantial reason for doing so,” and went on to find no such reason.
Citigroup demonstrates the Second Circuit’s unwillingness to intrude upon the realm of executive agencies. The decision clearly admonished the district court, and warned against interference with or dictating the terms of the arrangements made between public regulatory agencies and the business entities they regulate, even when such entities are the focus of intense public scrutiny about its business practices.
For further information, please contact John Stigi at (310) 228-3717 or Sarah Aberg at (212) 634-3091.
Wednesday, July 18, 2012
The Law and the Liability of Eugenics
Source: http://legaltalknetwork.com/podcasts/lawyer-2-lawyer/2012/02/the-law-and-the-liability-of-eugenics/
At An Air Force Base, Allegations Of Sexual Assault
Source: http://www.npr.org/2012/07/17/156885153/court-martial-begins-in-texas-air-base-scandal?ft=1&f=1070
Jumpstarting Your Practice: From Backpack to Briefcase
Tuesday, July 17, 2012
Absolute Novelty Worldwide - Not Always So Absolute
Future OS: Windows 8, Apple Mountain Lion and Beyond
Monday, July 16, 2012
Managing Expectations in a Post-Facebook World
Starting salaries continue slide as big firm opportunities dry up
Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202562736465&rss=nlj
Sunday, July 15, 2012
Freeh report highlights governance lapses
Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202562941161&rss=nlj
Things That Require an Expert
Yet the lawyer for Edward Krawetz somehow managed to get an expert on the witness stand to opine that the defendant's conduct was "objectively reasonable." How could that be, you ask? Well, Krawetz was a Lincoln, Rhode Island cop and this was his conduct.
You saw that, right? You saw how the drunk, belligerent woman, sitting on the curb, hands cuffed behind her back, drunk, attacked the officer with her bare foot, swatting at his shin? Do you have any idea how much a barefooted swipe at a shin can hurt? Must not let it happen again, or the officer might be permanently disabled on full pension and not be there for us when rapes need to be stopped.
The other police officers present did not seem terribly concerned about Krawetz's boot to the head of this woman, who had committed the heinous disorderly conduct. The suit who approaches the officer immediately after the boot struck head struck pavement, the one who appears to be wearing a press badge type cord around his neck and asking Officer Krawetz for directions to the nearest Dunkin' Donuts.
Notice how Patrolman Enos wasn't asked whether this young woman needed a damn good lesson in respecting police authority? Anybody want to guess what his answer to that question might be?On Thursday, the defendant’s fellow police officer at Twin River that evening testified that Officer Krawetz never expressed concern for his own safety, never said he feared serious bodily injury, never yelled out that he was in pain and never sought medical attention.
"Did he in anyway indicate to you, that he felt he was in danger of serious bodily injury?"
Patrolman Russell Enos replied, "No."
I recall something being said to me as a youngster about not hitting girls. I took it to heart, and even extended the message as far as not kicking women in the head with a heavy boot. This was true regardless of whether they were handcuffed, barefooted or seated on a curb, where there wasn't a chance in the world they could do any actual harm.
And for this, the court permitted an expert, because the jury couldn't possibly determine the ultimate fact without such thoughtful assistance as to whether the cop's boot striking the head of this woman was "objectively reasonable."
But you still won't be able to get a false confession expert before the jury.
H/T Marc Randazza
© 2012 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Source: http://blog.simplejustice.us/2012/07/10/things-that-require-an-expert.aspx?ref=rss
Saturday, July 14, 2012
Thai PM to forward constitution ruling to Council of State
Source: http://jurist.org/paperchase/2012/07/thai-pm-to-forward-constitution-ruling-to-council-of-state.php
Language is Everything ...
Probably the best dog park we found in our 3 month journey.
Bandit was certainly happy!
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/iu4yM4P1lR0/
Friday, July 13, 2012
Cloud-Based E-Discovery, Survey Results & Taxation of Costs
Gone Clio with Attorney Andrew Legrand
Source: http://legaltalknetwork.com/podcasts/gone-clio/2012/06/gone-clio-with-attorney-andrew-legrand/
Thursday, July 12, 2012
Fifth Circuit Requires More than "Tangential Relationship" Between Alleged Fraud and Transactions in "Covered Securities" to Support Dismissal Under the Securities Litigation Uniform Standards Act of 1998
In Roland v. Green, 2012 WL 898557 (5th Cir. Mar. 19, 2012), the United States Court of Appeals for the Fifth Circuit held that in order for a plaintiff’s state law class action lawsuit alleging fraud to be properly removable to federal court and precluded under the Securities Litigation Uniform Standards Act of 1998 (“SLUSA”), the allegations of the fraudulent activity must be more than “tangentially related” to transactions in “covered securities.” In so doing, the Fifth Circuit adopted the Ninth Circuit’s test regarding the scope of the “in connection with” language under SLUSA, declining to follow what it perceived to be more stringent tests applied by other circuits. In light of the clear circuit-split, this issue appears ripe for review by the United States Supreme Court.
In February 2009, the Securities and Exchange Commission brought suit against the Stanford Group Company, along with various other Stanford corporate entities, including the Antigua-based Stanford International Bank (“SIB”), for allegedly perpetrating a massive Ponzi scheme. When the Ponzi scheme collapsed two groups of Louisiana investors filed separate lawsuits against the SEI Investments Company (“SEI”), the Stanford Trust Company, the Trust’s employees and the Trust’s investment advisers alleging violations of Louisiana law. According to plaintiffs, SIB sold CDs to the Trust, which served as the custodian for individual IRA purchases of the CDs. The Trust, in turn, contracted with SEI to administer the Trust, making SEI responsible for reporting the value of the CDs. Plaintiffs alleged that misrepresentations by SEI induced them to use their IRA funds to purchase the CDs.
Defendants sought removal to federal court and dismissal of the case under SLUSA. The preclusion provision of SLUSA provides that “[n]o covered class action based upon the statutory or common law of any State or subdivision thereof may be maintained in any State or Federal court by any private party alleging a misrepresentation or omission of a material fact in connection with the purchase or sale of a covered security.” 15 U.S.C.§ 78bb(f)(1)(A) (emphasis added).
The United States District Court for the Northern District of Texas held that the plaintiffs’ claims were precluded under SLUSA because even though SIB’s CDs were not themselves covered securities, they were purportedly backed by “covered securities.” (Roland was consolidated with two similar class actions.) Plaintiffs appealed.
The Fifth Circuit recognized that the appropriate inquiry under SLUSA was whether the alleged fraudulent scheme was “in connection with” a transaction in a covered security. Because the scope of the SLUSA “in connection with” language was one of first impression for the court, it looked to Supreme Court precedent, Congressional intent and rulings by six other circuits to formulate its standard. The Fifth Circuit initially found the decisions from the Second, Ninth and Eleventh Circuits most useful because they attempted to give dimension to what is sufficiently connected/coincidental to a transaction in covered securities to trigger SLUSA preclusion. However, because each of these Circuits stated the requisite connection in a slightly different formulation, the Fifth Circuit looked to cases where the facts were closer to the allegations in the instant case.
Ultimately, the Fifth Circuit concluded that the standards articulated by the Second and Eleventh Circuits were too stringent, and instead adopted the Ninth Circuit’s test from Madden v. Cowen & Co., 576 F.3d 957 (9th Cir. 2009), which provides that a misrepresentation is “in connection with” the purchase or sale of securities if there is a relationship in which the fraud and the stock sale coincide or are more than “tangentially related.” Thus, if the allegations regarding fraud are more than tangentially related to (real or purported) transactions in covered securities, then they are properly removable and precluded under SLUSA.
In application and upon close examination of the “schemes and purposes of the frauds” alleged by Plaintiffs, the Fifth Circuit held that the references to SIB’s portfolio being backed by “covered securities” to be merely tangentially related to the “heart,” “crux,” or “gravamen” of the defendants’ fraud. The Fifth Circuit held that the gravamen of defendants’ allegedly fraudulent scheme was representing to the Plaintiffs that the CDs were a “safe and secure” investment that was preferable to other investments for many reasons. That the CDs were marketed with some vague references to SIB’s portfolio containing instruments that might be SLUSA-covered securities was tangential to the schemes allegedly advanced by the defendants. Thus, SLUSA did not preclude plaintiffs from using their state class actions to pursue recovery.
This decision reflects a complicated, multi-faceted circuit-split on an important aspect of federal securities law, suggesting that the issue is ripe for review by the Supreme Court.
For further information, please contact John Stigi at (310) 228-3717 or Taraneh Fard at (213) 617-5492.
Wednesday, July 11, 2012
Law Blog ™ of the Day
Source: http://blogs.wsj.com/law/2012/07/09/law-blog-%e2%84%a2-of-the-day/?mod=WSJBlog
Computer-Assisted Coding Implementation, Judicial Commentary & Cloud Computing
Tuesday, July 10, 2012
Is Your Food Safe?
Source: http://legaltalknetwork.com/podcasts/lawyer-2-lawyer/2012/05/is-your-food-safe/
Actos Litigation
Source: http://legaltalknetwork.com/podcasts/ringler-radio/2012/05/actos-litigation/
Monday, July 9, 2012
Predictive Coding: A Rose by Any Other Name
The 2012 APPELLATE HOT LIST
Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202559753115&rss=nlj
Sunday, July 8, 2012
Actos Litigation
Source: http://legaltalknetwork.com/podcasts/ringler-radio/2012/05/actos-litigation/
What Bill Marler Did
Point: He must have made a bundle off the case, an obscene amount of money, so it was no big deal.So what? If he made a bundle, it's because he earned a bundle, and in this nation, you are allowed to eat what you catch. We are a capitalist society and we do not frown upon profit. In fact, it's no crime to take your profit and put it in your pocket, buy a Ferrari, or just lie naked in a bath tub filled with greenbacks. Welcome to America. But Bill chose not to do so.
Point: It's great advertising, and this will come back to him in spades.
So what? Should it turn out that others think well of Bill for what he's done, and that translates into more business and more money, is that somehow a reason to do otherwise? That our acts of kindness or good behavior or generosity happens to have the collateral benefit of making others appreciate us, it by no means diminishes the act itself.
And what did Bill Marler do that would give rise to such resentment? He did good, that's what. From Food Safety News:
When Nevada's Green Valley High School held its winter sports award banquet last week, Seattle-based food safety law firm Marler Clark was there to announce a donation of $100,000 to the Henderson-based school.The donation was made in honor of Green Valley's former teaching assistant, E. coli victim Linda Rivera, and her family.
Marler Clark managing partner Bill Marler, who represents Rivera, said the donation to the school will provide science scholarships and help fund the wrestling program and special education."I am extremely proud to be part of such an event and, even more so, honored to work with a family as courageous as the Riveras," said Marler. "Linda's battle with E. coli has certainly been one of the most devastating I've ever witnessed in my nearly 20 years of foodborne illness litigation and I know the Riveras are simply overjoyed to see something positive come from this experience."
There is no reason in the world that Bill and his firm couldn't have taken this $100 grand and plowed it into SEO, even a cool TV commercial with some unctuous actor looking doe-eyed into the camera and asking, "did your broccoli make you puke?" If this was about marketing and advertising, there would be no shortage of people claiming to be "professionals" who would have butchered the mother-tongue to prove how badly they wanted it.
But Bill chose instead to donate it to his client's school, the place where people cared about her, where her children were comforted and where a small community stood behind his client in her time of need. What a terrible thing to do, help a family, a school and a community. Such a Machiavellian ploy.
Outside the world of foodborne illness litigation and a small town in Nevada, few will know of Bill's donation. It's not like that Facebook kid threw pocket change at Newark, New Jersey. He's filthy rich. Bill Marler is just a working lawyer. You should know, however, about this.
Want to let your community know you exist? You could send a check to Bangalore for misspelled SEO juice, or some fast-talking snake oil salesman who will teach you how to become a twitter guru. If you really want to all in, get the full team, from graphic artist for your critically acclaimed logo which can then be plastered on informercials night after night. Is there a niche practice for the sleep-deprived?
Or you can use whatever money you would otherwise piss away on nonsense for the good of someone else. Fund a scholarship. Or a soup kitchen. There are no shortage of opportunities in every community to help. And if you happen to also get some gain for yourself out of it, whatever.
People have plenty of bad things to say about lawyers, most of them well-earned. Some may feel compelled to project their own evil thoughts onto Bill Marler. The point is that regardless of whether there was any thought of gain from an act of generosity in no way makes the gift of Marler Clark less beneficial to that school, to those children and to that community.
Think what you want. Bill Marler did good, and he deserves every bit of recognition he gets for this act of generosity. And if you're jealous of the kind words, do something good yourself.
H/T Kevin O'Keefe
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Source: http://blog.simplejustice.us/2012/07/08/what-bill-marler-did.aspx?ref=rss
Saturday, July 7, 2012
Improving the Quality of Care for Injured Workers
Managing Director of Best Doctors Occupational Health Institute. Michael talks about his view of workers’ compensation, how to make sure that injured workers are getting the best medical care possible and how he works with both insurers and injured workers through their attorneys to achieve best the quality of care.
How The Health Care Ruling Might Affect Civil Rights
Friday, July 6, 2012
Defense Attorneys Turning to Social Media
Taming e-Discovery
Source: http://legaltalknetwork.com/podcasts/robert-half-legal-report/2011/11/taming-e-discovery/
Thursday, July 5, 2012
Judge Sets George Zimmerman's Bond At $1 Million
Source: http://www.npr.org/2012/07/05/156325911/judge-sets-george-zimmermans-bond-at-1-million?ft=1&f=1070
Why Dewey Died: Three Perspectives
Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202559736339&rss=nlj
Wednesday, July 4, 2012
The 2012 APPELLATE HOT LIST
Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202559753115&rss=nlj
Kid Put What In His Teacher's Coffee?
At any given time, most students dislike at least one of their teachers. That said, you can't just go around putting STAPLES in a disfavored teacher's coffee! As reported by WHSV (Virginia):
As of Tuesday, charges have been filed against a 15-year-old William Monroe High School student for allegedly putting staples in his teacher's ice coffee.In case you might be thinking the charge is a misdemeanor ...
At a court hearing Monday, the teen was charged with felony adulteration of food, drink, drugs, cosmetics, etc. with the intent to kill or injure any individual who ingests, inhales or uses such substance.And if you're wondering how the staples went down, surprisingly, the answer is: unnoticed.
The victim of the assault, a ninth grade English teacher, unknowingly drank the staple-spiked coffee May 10 but was not seriously injured.But that may not be the end of it for the teacher.
Maj. Randall Snead, with the Greene County Sheriff's Office, reports authorities are monitoring the teacher's condition since the damage caused by the staples may not be readily apparent.Here's the source.
Source: http://rss.justia.com/~r/LegalJuiceCom/~3/R2T1YfILRCE/post_436.html